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In the Matter of:

November 4, 2011


Trial Court Case Nos. 20730426 Trial Court Case Nos. 20730427 Trial Court Case Nos. 20730428 (Criminal Appeal from (Common Pleas Court)

The opinion of the court was delivered by: Hall, J.

Cite as In re S.S.,


{¶1} This case is before the Court on a mother's appeal of a juvenile-court order granting permanent custody of three of her children*fn1 to appellee, Miami County Children's Services. Two of the children, S.S. (daughter) and D.S. (son), are twins, born June 27, 2003, making them just shy of 6 years old when the permanent-custody hearing was held. L.M. (son) was born April 26, 2006, making him 3 years old at the time.

{¶2} In 2007, under an agreed order, the children were adjudicated dependent, and Children's Services obtained protective supervision of them, though they remained with Mother in their home. But in April 2008, after two of the children were found wandering outside unsupervised, Children's Services removed the children from their home and received temporary custody of them. This too was done under an agreed order. Mother was convicted on two counts of endangering her children and sentenced to probation. On March 30, 2009, the day before Mother was to be released from jail (where she had been for the past month or so for violating her probation by using illegal drugs) Children's Services moved for permanent custody of the three children.

{¶3} The permanent-custody hearing was held on June 10, 2009, before a magistrate. The magistrate found that, at the time the permanent-custody motion was filed, almost a year after the children were removed, Mother had failed to make any progress on the plan that would reunite her with the children. The magistrate further found that, since they were removed, Mother had not seen the children at all because she never provided Children's Services with a clean urine screen. Finally, the magistrate found that, even though Mother had recently begun making progress, she would not be ready to care adequately for the children for at least another six months. Based primarily on these findings, the magistrate recommended that Children's Services be granted permanent custody of all three children. Mother objected, but the juvenile court dismissed the objections as untimely and adopted the magistrate's recommendation. Mother appealed, and this Court reversed, instructing the juvenile court on remand to consider Mother's objections. See In re S.S., Miami App. No. 09-CA-36, 2010-Ohio-992.

{¶4} In March 2011, the juvenile court overruled all but one of Mother's objections. The court again adopted the magistrate's recommendation, granting Children's Services permanent custody of the children.

{¶5} Mother appealed.*fn2

A. Standard of Review

{¶6} A juvenile court's decision to grant permanent custody, and concomitantly terminate parental rights, must be supported by clear and convincing evidence. See In re L.C., Clark App. No. 2010 CA 90, 2011-Ohio-2066, at ¶14, citing R.C. 2151.414(B)(1). We will not disturb the court's decision on evidentiary grounds "if the record contains competent, credible evidence by which the court could have formed a firm belief or conviction that the essential statutory elements for a termination of parental rights have been established." Id., citing In re Forrest S. (1995), 102 Ohio App.3d 338, 344-345.

{¶7} The ultimate decision to grant permanent custody of a child to a children's services agency is within the court's discretion. See R.C. 2151.414(B)(1) (stating that "the court may grant permanent custody of a child" (Emphasis added.)). "We review the trial court's judgment for an abuse of discretion." In re L.C., at ¶14, citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, at ¶48. "Abuse of discretion implies that the trial court's decision was unreasonable, arbitrary or unconscionable." In re S.S., at ¶22, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Unless we find that the court abused its discretion we will defer to its judgment. Id. ("When applying the abuse of discretion standard, an appellate court may not merely substitute its judgment for that of the trial court."), citing Berk v. Mathews (1990), 53 Ohio St.3d 161, 169. Therefore the adoption of a magistrate's decision "will only be reversed [if] it appears that the trial court's actions were arbitrary or unreasonable." Id. (Citation omitted.).

B. A Court's Power to Grant Permanent Custody to a Children's Services Agency

{¶8} Section 2151.414 of the Revised Code gives a court the power to grant permanent custody of a child to a children's services agency. See R.C. 2151.414(B)(1). Before the court may exercise this power, though, the statute requires that it determine, by clear and convincing evidence, that at least one of the conditions enumerated in the statute applies and that the court determine, again, by clear and convincing evidence, that granting permanent custody to the agency is in the child's best interest. Id. In addition to these two determinations, although R.C. 2151.419 does not mandate that the court make a finding in the permanent custody hearing that reasonable efforts have been made to reunify the family, at some point before the court may grant permanent custody, the agency must establish that it made reasonable efforts to reunite the child and parent(s). See In re A.D., Miami App. No. 2007 CA 23, 2008-Ohio-2070, at ¶7, citing R.C. 2151.419(A)(1). Here the magistrate's decision made both determinations and the finding of fact. Mother contends that the evidence is insufficient to support any of them.

C. The Determination that the Children Cannot be Placed with Mother within a Reasonable Time or Should Not be Placed with Her

{¶9} The condition that the magistrate determined applies here is the one described in R.C. 2151.415(B)(1)(a), which applies when "the child cannot be placed with either of the child's parents within a reasonable time or should not be placed with the child's parents." A court must determine that this condition applies if, considering all relevant evidence, it determines, by clear and convincing evidence, that one of the circumstances enumerated in R.C. 2151.414(E) exists. The circumstance that the magistrate determined exists here is this: "The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child." R.C. 2151.414(E)(4).

{¶10} In the first assignment of error, Mother contends that the evidence is insufficient to support the court's finding that she demonstrated a lack of commitment toward the children. Mother also contends that it would be reasonable to wait six months to place the children with her.

{ΒΆ11} Mother admits that she abused drugs for over 10 years. In 2003, she underwent in-patient drug rehabilitation, but in 2008, she was still using drugs regularly. Most often Mother used marijuana, but she also used crack cocaine, powered cocaine, and heroin. She also abused prescription medicine-some prescribed to her, some not. Mother testified that she is merely a "weekend user," meaning she did not use drugs every day. She acknowledged her relapses but said ...

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